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Order (public reprimand) entered by the Board April 26, 2001


The respondent received a public reprimand for his neglect of two immigration cases.

As to Count One of the petition for discipline, in late April 1996 the client retained the respondent to represent him at a deportation hearing scheduled for May 1, 1996 in the Immigration Court in Boston. The respondent had a prior commitment and was unable to attend the hearing, but he told the client to go to the hearing and obtain a continuance. The respondent also drafted a letter of appearance and Notice of Appearance Form EOIR28 for submission to the Clerk of Court of the Executive Office for Immigration Review. The documents were never filed because the client's car broke down en route to Boston, and he did not appear for the hearing. The client was defaulted and ordered deported.

The respondent prepared a motion to reopen, supported by a bill from the tow truck and affidavits from the tow truck driver, the client, and the client's passenger. However, neither the administrative file of the Immigration and Naturalization Service (INS) nor the Immigration Court's record of proceeding contains any evidence that either the respondent's motion or the filing fee was ever filed. The respondent took no further action on behalf of the client. He never inquired with INS or the Immigration Court regarding the status of his motion to reopen.

On June 19, 1997, the client was arrested by the U.S. Marshall and placed in detention in a federal facility. On June 25, 1997, the client's successor counsel filed a motion to reopen the client's case, together with a motion to redetermine bond and a motion to stay execution of deportation order. That same day the Immigration Judge allowed the motion to stay execution of deportation order, and on July 3, 1997, the Immigration Judge allowed the motion to reopen. On or about July 10, 1997, the bond was reduced and the client was released from custody.

On or about January 31, 1998, the client's successor counsel submitted a petition for labor certification on his behalf. The client was granted adjustment of status to lawful permanent resident on September 23, 1998.

As to Count Two of the petition for discipline, the respondent represented the client in her divorce and in related immigration matters. A native of Columbia, the client did not read or write English. The client paid the respondent $250 for representation in her divorce. She did not pay the respondent anything to represent her in her immigration case.

On July 25, 1994, the client became a conditional permanent resident, based on her July 25, 1992 marriage to a U.S. citizen. On April 14, 1997, the INS notified the client of its "Intent to Deny" her request for permanent residence, because she and her husband had lived together for only four months, and were then separated. On April 27, 1997, the respondent filed a response on the client's behalf with the INS. On or about August 26, 1997, the INS served the client with a Notice to Appear, informing her that her conditional status had been terminated on July 8, 1997. The INS informed the client that she would be expected to appear before an immigration judge at a date to be determined in the future.

In or about September 1997, the client changed her residence. The respondent subsequently learned of her change of address, and advised the client to notify the INS, which she did. However, the INS and the Immigration Court maintain separate lists of current addresses for aliens in proceedings, and neither the client nor the respondent notified the Immigration Court of her address change, nor did either ask the Immigration Court whether the hearing had been scheduled.

On or about September 4, 1997, the Immigration Court sent the client notice of a hearing set for December 31, 1997. The court mailed the notice to the client's former address. It was not forwarded. The client did not appear for the hearing and was ordered deported in absentia.

By notice dated April 16, 1998, the INS informed the client that she was to leave the country on May 14, 1998. On May 1, 1998, the respondent wrote to the INS district director objecting to the notice, and pointing out that the 180 days permitted an alien to appeal an order of deportation in absentia had not yet elapsed. On June 29, 1998, the respondent filed a motion to reopen the client's case. The motion was denied on October 27, 1998. The respondent did not inform the client of the denial until December 26, 1998, a month after the thirty day appeal period had lapsed.

On June 17, 1999 the client filed an application for a stay of deportation. Her motion was denied on June 22, 1999. On July 26, 1999 the client's successor counsel filed a motion to reopen, on the grounds of ineffective assistance of counsel. The Immigration Judge granted that motion on September 29, 1999 on the grounds that the client's nonappearance at her hearing "may have been caused by ineffective assistance of counsel." The client's case is scheduled for hearing on the merits in September 2001.

As to both Counts One and Two, the respondent's neglect of the clients' legal matters, failure to act with promptness and diligence in completing his undertakings on behalf of the clients, and failure to communicate adequately with the clients constituted inadequate preparation, lack of competence and diligence, and damage to a client, and is, for conduct prior to January 1, 1998, in violation of Canon 6, DR 6-101(A)(2) and (3), Canon 7, DR 7-101(A)(3) and, for conduct after January 1, 1998, in violation of Mass. R. Prof. C. 1.1, 1.2 and 1.4.

The respondent was admitted to practice in 1994. In mitigation, the respondent had no history of prior or subsequent discipline, he attended a CLE course recommended by Bar Counsel, and agreed to refund the fee paid by the client in Count One.

The matter came before the Board of Bar Overseers on a stipulation of facts and disciplinary violations and a joint recommendation that the respondent receive a public reprimand. On April 9, 2001 the Board adopted the parties' recommendation.

1 Compiled by the Board of Bar Overseers based on the record of proceedings before the Board.

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